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Tom Head

How Should the Second Amendment Be Interpreted?

By November 25, 2007

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Background: The Second Amendment

NRA Mother Shops for Handguns
A young mother shops for handguns at the NRA's 2007 Annual Meeting and Exhibit as her son naps nearby. Photo: Scott Olson / Getty Images.

Last week, the U.S. Supreme Court agreed to hear the DC v. Heller handgun case. In six months, the Court will decide whether or not the District of Columbia's ban on handguns is a violation of the Second Amendment--potentially establishing the Court's first meaningful Second Amendment doctrine in the history of the United States.

The first, you ask? What about United States v. Miller (1939)? The case that ruled in favor of a state law banning sawed-off shotguns? Well, depending on who you ask, it either protects the individual right to bear militia-grade arms or it protects the collective right to establish militias. My suspicion, given how seldom it has been cited over the past 68 years, is that it protects nothing at all. The Supreme Court is bound to cite Miller when it issues its ruling next year, and I look forward to watching our esteemed jurors in black robes try to coax anything useful out of it. I wish them luck.

Most of the usual approaches to interpretation aren't going to work, either. Take original intent, for example. The obvious intent of the Framers was to give the people of the United States the power to start a future revolution if necessary (see Jefferson's "tree of liberty"/"blood of tyrants" letter), but somehow I find it unlikely that the Supreme Court will rule that DC residents must be allowed to own handguns just in case they decide to violently overthrow the government.

So we have a problem here: The Second Amendment has never been meaningfully interpreted by the Court since 1789, the United States of 1789 was a very different country, and so, goodness, how can today's Court make sense of it all?

I doubt Chief Justice Roberts and company are reading my blog and taking notes, but my suggestion would be to look at a lesser-known case that came about at the end of the McCarthy era: Konigsberg v. State Bar of California (1957 and 1961). In Konigsberg, the State of California refused to grant a law license to Raphael Konigsberg because he refused to answer questions about his views on communism. He correctly cited this intrusion as a violation of his First Amendment rights. The Supreme Court disagreed with him, so Konigsberg's central finding is not a precedent that I support, but Dave Kopel points out an interesting footnote to the ruling:
[An absolutist interpretation of the First Amendment], which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: "Congress shall make no law ... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble ..." But as Mr. Justice Holmes once said: "[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of growth" ... In this connection also compare the equally unqualified command of the Second Amendment: "the right of the people to keep and bear arms shall not be infringed."
The Konigsberg footnote suggests that the First Amendment's individual right to free speech can be interpreted--and, when necessary, restricted--on the same terms as the Second Amendment's right to bear arms. So if we're going to construct a Second Amendment doctrine from scratch, why not base it on First Amendment doctrine?

When a law challenges the First Amendment right to free speech, it generally has to satisfy two criteria:
  • The law must serve an essential, necessary, and compelling state interest ; and
  • It must constitute the least restrictive means of serving that state interest.
So in order to ban handguns, for example, the government would need to prove that banning handguns would actually serve the intended essential government interest (presumably violent crime reduction), and that the handgun ban is the least restrictive means of meeting that interest. My suspicion is that the DC handgun ban would not meet this strict standard, but that some of the other firearm-related regulations currently in effect (federal bans on machine guns and grenade launchers, for example) probably would.

But enough of what I think. Does a compelling state interest/least restrictive means standard for the Second Amendment make sense to you, gentle readers? Share your thoughts in the comments field below.

See also:

Comments

November 25, 2007 at 9:06 am
(1) Butch says:

Personally this issue is the one area I vehemently disagree with the ACLU because it seems so hypocritical of them. I support the great work they do in all other areas of protecting our basic rights as outlined in the Constitution even if the individuals or specific cases are unpalatable, but then they just kind of ignore the 2nd Amendment. If the right to freedom of speech must be protected even for hate speech, and I think it does, then the right to bear arms must also be protected.

November 26, 2007 at 9:41 pm
(2) Proffsl says:

The Right to keep and bear arms shall not be infringed. PERIOD

November 26, 2007 at 11:42 pm
(3) Proffsl says:

Often people try to claim the 2nd Amendment’s use of the word “arms” is vague, as if it did not have a precise meaning. Instead, it’s use of the word “arms” is deliberately broad in it’s meaning, encompassing “sticks”, “swords”, “muskets”, “rifles”, “pistols”, and many other forms of arms.

Just as the 1st Amendment’s use of the word “speech” is also broad in it’s meaning. The meaning of the word “speech” encompasses “political speech”, “religious speech”, “scientific speech”, “fictional speech”, and many other forms of speech.

To suggest that either the word “arms” or “speech” is vague would be to suggest it does not have a precise meaning. But, the meanings of both “speech” and “arms” are quite precise, regardless that their forms are infinitely varied.

If we were to try to satisfy this claim of vagueness by some, we would end up having to specify all the forms of speech and arms that are protected, and we would also end up suggesting that any form of speech or arms not specified would also not be protected.

In respect to the word “speech”, if we took this approach and specified that “political speech”, “religious speech”, “scientific speech” and “fictional speech” were all protected, we would no longer have the Right of speech. There would undoubtedly come those who would claim that “science fiction speech” IS NOT protected, or that “poetic speech” is not protected. But, most of us understand that the word “speech” encompasses all these forms, and many more, of speech. I doubt even the anti-gunners would approve of such a re-writing of the 1st Amendment.

But, satisfy the anti-gunners desire to re-write the 2nd Amendment in this fashion, and we will no longer have the Right to keep and bear arms, but instead only to keep and bear “swords no longer than 24 inches in length”, “muskets that fire spherical projectiles”, or “rifles that are no shorter than 24 inches, no longer than 36 inches, and hold no more than 8 rounds of ammunition”. Then, undoubtedly, there would come those who would claim that any form of arms not specifically stated as being protected are not protected.

In fact, this would empower the anti-gunners to effectively prohibit ALL forms of arms. For example, where it states that “rifles that are no shorter than 24 inches, no longer than 36 inches, and hold no more than 8 rounds of ammunition” are protected, it didn’t state the caliber of ammunition, and therefore all rifles could be presumed to be not protected, regardless if they meet the specifications or not.

Even if the Right were expanded to “rifles that are no shorter than 24 inches, no longer than 36 inches, and hold no more than 8 rounds of 22 caliber ammunition”, all such rifles could be presumed to be not protected, because it didn’t specify the material used in the stock of the rifles.

And, if the Right were expanded to “rifles that are no shorter than 24 inches, no longer than 36 inches, hold no more than 8 rounds of 22 caliber ammunition, and have wooden or plastic stocks”, all rifles meeting these specifications could still be presumed to be not protected because it didn’t specify the color of the stock.

In this fashion, we could keep expanding on our Right of arms until the end of time, producing volumes of specifications filling entire sky scrapers with all the forms of arms to which we have a protected Right, and still effectively have no Right to any form of arms.

November 27, 2007 at 8:40 am
(4) EdWestT says:

Firearm prohibitionists say citizens should not own firearms because they might commit crimes of violence. Such reasoning is illogical, and denies a basic premise of citizenship, that individuals can be trusted to be responsible for their actions. If they choose otherwise, they will answer to the legal system. The Second Amendment means just what it says – “… the right of the people to keep and bear arms shall not be infringed.” If we allow the 2nd Amendment to be done away with via specious legal opinons, we will become subjects and no longer free.

November 27, 2007 at 9:18 am
(5) John Clark says:

Only those intent on banning 2A rights claim it to be confusing. These folks are scared because they have stretched the penumbras to cover their liberal jackass social views and a similar treatment of the 2A would mean an unfettered armed populace. They are lying when they say it is confusing. No one is confused.

November 27, 2007 at 11:28 am
(6) ctr23089 says:

Our forefathers in their infinite wisdom put the second amendment in for a very good reason. Look at what is happening today, the largest fed gov. in history, which is against the constitution, by the way. Taxation without much representation, and no one polition listening to their people. The highest energy prices and med costs, the unfailing premise that if you tell the story long enough it will be taken as true. The amont of crime per census is small with a gun than domestic violence with fists or knives. Secial interest groups wanting to ban guns should understand that we are protecting not only ourselves but this country from hostile forces moving in.

November 27, 2007 at 1:57 pm
(7) Eric says:

Proffsl said: “The Right to keep and bear arms shall not be infringed. PERIOD.

You might want to read your Constitution again. The Constitution includes a major qualifier. And that’s what the legal debate is about.

November 27, 2007 at 2:22 pm
(8) Fascinatin' says:

There is no debate other than by those who use if to obfuscate.
There was no ‘qualifier’ but rather a reason given. ‘Well regulated’ as used in common parlance at the time meant skilled, capable or well-trained. Militia was defined as all adults in the community (usually taken to mean men at the time – but not even specifying citizenship as a qualifier and, even at that time, never thought to prohibit women who may have evidenced a desire to own weapons – many women were known for their excellent marksmanship)
Finally, it was stated explicitly in the discussions at that time that there should be no weapon available to the government that was not equally available to the general populace.
The intent was and is crystal clear and is only ‘debated’ by those who simply don’t like what it says and who try to pretend that it says something other than what it so clearly does.

November 27, 2007 at 10:25 pm
(9) Proffsl says:

Eric, if by “qualifier” you mean the portion that says: “A well regulated Militia, being necessary to the security of a free State,”, the only thing it qualifies is the reason THE PEOPLE have the Right to keep and bear arms.

It does qualify which, or when, PEOPLE have the Right to keep and bear arms.

November 29, 2007 at 2:31 am
(10) Nogun says:

In the spirit and period that this amendment went into effect, we still hunted for our primary source of food if farm animals were not available.
The wild west was “wild” and one needed to protect family against dangerous maurauders and possibly wild animals. We now have a somewhat more civilised? land where 911 is the new spirit of the law. Guns are in too many deranged people’s hands. I feel more danger today because weapons like these are not used for the purpose that the 2nd amendment INTENDED.

November 30, 2007 at 1:08 pm
(11) Clay says:

I ask, sir, what is the militia? It is the whole people, except for a few public officials. _ George Mason

Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. – Patrick Henry

A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms. – Richard Henry Lee

November 30, 2007 at 3:34 pm
(12) Mike says:

I curious about what you mean by “states interests.” The state is made up of individuals. Without the individuals the state concept would not exist. Therefore, anything not in the interests of the individuals is not in the interests of the state. When find people trying to separate the two I usually think of a subversive reference to “the benefit of the politically connected.”

December 1, 2007 at 2:43 am
(13) proffsl says:

“We now have a somewhat more civilised? land”

“civilised?” indeed! The nature of mankind hasn’t changed in tens of thousands of years. The only thing that has changed is our technology. And, the only way to defend ourselves against that technology is to use that technology.

“Guns are in too many deranged people’s hands.”

Then, get these “deranged people” out of the general pupulation where free men have a Right to keep and bear arms.

“I feel more danger today…”

And, we are supposed to sacrifice our Right to keep and bear arms because you have a “feeling”?

I have avoided such “feelings” myself by not paying attention to propoganda designed to make me “feel danger” due to our Right to keep and bear arms.

“…because weapons like these are not used for the purpose that the 2nd amendment INTENDED.”

“weapons like these”??? I have no idea what that is supposed to mean.

Weapons are used for Rightful and Wrongful purposes. I intend to Rightfully keep and bear arms in order to protect myself from Wrongful use of arms.

December 1, 2007 at 11:23 am
(14) Marcia Purse says:

If the framers of the Constitution had foreseen the way “arms” are used today, I have no doubt they would have been more specific. Did they really mean that anyone who wants to should have assault weapons in their homes to use in gang wars; that innocent children should be gunned down by bullets going through the walls of their homes; that young people should be able to murder large groups of their schoolmates? I don’t think so.

We have no effective way to prevent atrocities without stricter laws for everyone. Ask yourself: Will your life really be less secure if you don’t have an AK-47 in your home, or a cache of hand grenades? When will you ever use those hand grenades for a legal purpose?

The definition of “militia” may be the key. Does it mean citizens’ groups? Does it mean the armed forces of the United States? I don’t know.

By the way, there are laws in place to keep weapons out of the hands of people with serious mental illnesses, but existing law does not provide the funding or technology to enforce these laws. HR 2640, NICS Improvement Amendments Act of 2007, if it becomes law, would address these deficits.

A 1999 study found that “As many as one-third of the guns used in crimes by juveniles and up to half of those used by people aged 18 to 24 were purchased within the last three years from federally licensed dealers, showing that large numbers of new guns are being sold illegally.” And another 35% of the weapons used were stolen.

I would have a lot more respect for groups like the NRA if they spent more time actively working to make sure that weapons cannot be used for illegal purposes than endlessly crying “Don’t take MY gun away.”

Okay, you may all jump on me now, if you wish. You won’t change my opinion that the framers’ foresight was short-sighted, and I doubt I can change your opinions, either.

December 1, 2007 at 6:02 pm
(15) Tom Head says:

Hi, Marcia! Welcome!

I believe the Framers’ vision of the Second Amendment probably was short-sighted–the weapons we have today are the stuff of science fiction, by their standards–but that’s why they made it possible to revise the Constitution.

And my view is that unless and until the Second Amendment is revised, it sticks. I mean, we can say it’s shortsighted, sure–but there are many folks who think free speech, press freedom, the Fourth Amendment, the Fifth Amendment, and the Eighth Amendment as we know them are all shortsighted in the post-9/11 world, and they have to honor them anyway. So my feeling is that if we’re prepared to say that the Bill of Rights is binding, the Second Amendment has to be part of that.

Should it be? I don’t know. My feeling is that it probably should. Yes, a national gun ban would shut down large-scale civilian firearm production–but all that would do is export the multi-billion dollar industry elsewhere. Then we’d have a war on guns to go with our war on drugs, and it would probably be equally unsuccessful.

December 6, 2007 at 8:21 am
(16) Marcia Purse says:

Thanks for the welcome, Tom.

Your points are excellent. A certain administration is behaving as if certain portions of the Constitution don’t exist, and I am outraged about it. So am I being inconsistent in wanting more gun control while being enraged at secret wiretapping of US citizens? Maybe …

But maybe not. Because the Second Amendment’s language IS open to debate. My feeling is that it is not meant to throw access to arms to all people. If that is what they meant, why mention “a well-regulated militia”? Why not just have said “The right of the people to keep and bear arms shall not be infringed,” unqualified? I just read the Bill of Rights to be sure I’m speaking accurately, and none of the other amendments has such a qualification.

And yesterday we had another mass shooting by a teenager – using a semiautomatic rifle. Eight dead plus the shooter, 5 wounded. I don’t know the right answer to the Constitutional question – I only know I desperately want something to be done to prevent tragedies like this one.

December 12, 2007 at 10:21 am
(17) Clay says:

If guns cause violent crime, well then I guess matches cause arson.
The founders new the necessity of an armed populace. It’s not for protecting ourselves against criminals, although that is a useful purpose for firearms. It’s not for hunting, although that is also a useful purpose. The necessity of armed populace is as a check against tyranny. That’s right. To protect us from our own government. Think about it, all you government-loving liberal sheep- If the government has all the guns and the people have none, how long do you think we will keep our freedom?

“Where the government fears the people, there is Liberty. Where the people fear the government, there is tyranny.” Benjamin Franklin

“To disarm the people – that is the best and most effectual way to enslave them.” — George Mason

December 30, 2007 at 1:41 pm
(18) NSmith says:

The meaning of the Second Amendment is clear if one is looking for truth. The meaning only becomes “fuzzy” when one doesn’t like what it says. Lookup and read the “The Militia Act of 1792″, pay special attention as to who was to provide the weapons for use in government service. If one can’t understand the Second Amendment then, then one has an agenda to meet.

July 15, 2008 at 2:34 pm
(19) SteveL says:

I still don’t follow why the business about Militia’s in the 2nd amendment is irrelevant in the 21st century. Insurgencies around the world have shown that people armed with grenades, mines, anti-tank weapons, portable surface to air missles, automatic weapons etc. can be effective when used in guerilla warefare against a opposition that has vastly superior arms. The possiblity of tyranny is arguably as great now as it was in the 18th century. While, it certainly doesn’t make sense to allow people to have nuclear weapons, why doesn’t the 2nd amendment guarantee the right to the kind of weapons that insurgencies around the world currently use?

January 21, 2009 at 4:52 pm
(20) Tom says:

To Nogun,

I’m Native American and I still hunt as a source of food. It’s very closed minded and naive of you to think that EVERYONE buys their food in a grocery store. For me to hunt is a spritual way of life as well as me putting food on the table. As a Native if you were to take that right away from the law abiding citizen you would dismember our way of life. The criminals will ALWAYS find a way to get their guns to commit crimes and if that happens there will be so many people will become shut-ins because they’ll be afraid to leave their home, I don’t wan that. Think what you will, but the rights of the gun owner should not be tread upon.

July 17, 2009 at 6:38 pm
(21) Mike says:

I think that we need to simply define something here. Guns are really not the issue. The real issue is freedom. We can all disagree on a lot of things, but if we don’t stick together and protect our freedom we will all be in trouble. It is amazing that the more control we put on guns the higher the crimes committed with guns goes. I really don’t think the problem is an inanimate object is going to talk anyone into committing a crime. Believe it or not our founders forsaw the day when we might have to defend ourselves against our own government. THEY DID! That was the fram of mind they were in when they wrote this and had just come from a revolutionary war to rid themselves of tyranny. Talk about intent.

September 10, 2009 at 8:36 am
(22) Jefferson says:

If the meaning of “Free Speech” is to be taken literally, then all speech, no matter what it entails fits the bill. Today, our media is skewed. Presidential press meetings are a rehersal between the people picked to give questions to the Presidents answers. These meetings rival the best of Broadway Shows. When the governing body, that we so elected to serve the public and the interests that are to help us now and in the future, decides to “manipulate” so called press meetings, we are all at danger of leading down the road to a future that is narrowed by the thoughts of a few special interest groups. For it is not only the right, but our responsibility as American People to point out to our governing “public servant” officials that if they do not start to deal with the American people on the square, that we as the American People have the right to start a new governing body under the same Democracy that our forefathers started, but with fresh ideas and people who want to serve America, and not some special interests groups that have eaten their way into the very fabric of our legal statutes. These rights were written by our fore fathers in the Bill of Rights. They wrote this clause to ensure that the Dictatorship hold the King of England had on the colonies would never happen again. Can we really say we, as hard working American people, see our governing body working for the good of us? If I were to tell you that I was working on a project that mattered to your well being but kept putting off the results because I was not sure of its results and how it would affect your well being. All along, you’re suffering to have a solution and are paying higher fees for no results. I would not have that job too long. But Congress continues the same rhetoric year after year. Free speech?? I beg to differ. More like selected speech!

April 9, 2010 at 3:10 am
(23) proffsl says:

Proffsl (3) said: “The Right to keep and bear arms shall not be infringed. PERIOD.

Eric (7) said: “You might want to read your Constitution again. The Constitution includes a major qualifier. And that’s what the legal debate is about.”

There are those who would argue that the 2nd Amendment is saying that one must be a member of a state militia before they should be afforded the PRIVILEGE to keep and bear arms. But, they would be trying to put the buggy before the horse.

In fact, they would be trying to put EFFECT before the CAUSE.

Consider the 2nd Amendment:

“A well regulated Militia, being necessary to the security of a free State, the Right of the people to keep and bear arms shall not be infringed.”

In terms of Cause and Effect:

Cause = “the Right of the people to keep and bear arms [not being infringed]”

Effect = “A well regulated militia [which is] necessary for the security of a free state”

In other words: The Right of the people to keep and bear arms not being infringed will CAUSE the EFFECT of a well regulated militia which is necessary for the security of a free state.

Now, actually, this Effect has a Sub-Cause and Sub-Effect, such that:

Sub-Cause = “A well regulated militia”

Sub-Effect = “A free state”

In other words: A well regulated militia will CAUSE the EFFECT of a free state.

But, BEFORE this Sub-Cause and Sub-Effect can occur, there must be the primary Cause and then the primary Effect can occur as pointed out above.

April 18, 2012 at 3:23 pm
(24) RobDyrdek says:

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